Section 702 AFF

1AC

Inherency

Section 702 has virtually no oversight while violating rights across the globe.

Kayyali, ’14

(Nadia, Bill of Rights Defense CommitteeLegal Fellow, “The Way the NSA Uses Section 702 is Deeply Troubling. Here’s Why.”, EFF, May 8th, 2014, https://www.eff.org/deeplinks/2014/05/way-nsa-uses-section-702-deeply-troubling-heres-why)

The most recent disclosure of classified NSA documents revealed that the British spy agency GCHQ sought unfettered access to NSA data collected under Section 702 of the FISA Amendments Act. Not only does this reveal that the two agencies have a far closer relationship than GCHQ would like to publicly admit, it also serves as a reminder that surveillance under Section 702 is a real problem that has barely been discussed, much less addressed, by Congress or the President. In fact, the "manager’s amendment" to the USA FREEDOM Act, which passed unanimously out of the House Judiciary Committee, has weakened the minimal changes to Section 702 that USA FREEDOM originally offered. Although Representative Zoe Lofgren—who clearly understands the import of Section 702—offered several very good amendments that would have addressed these gaps, her amendments were all voted down. There’s still a chance though—as this bill moves through Congress it can be strengthened by amendments from the floor. Section 702 has been used by the NSA to justify mass collection of phone calls and emails by collecting huge quantities of data directly from the physical infrastructure of communications providers. Here’s what you should know about the provision and why it needs to be addressed by Congress and the President: Most of the discussion around the NSA has focused on the phone records surveillance program. Unlike that program, collection done under Section 702 captures content of communications. This could include content in emails, instant messages, Facebook messages, web browsing history, and more. Even though it’s ostensibly used for foreign targets, Section 702 surveillance sweeps up the communications of Americans. The NSA has a twisted, and incredibly permissive, interpretation of targeting that includes communications about a target, even if the communicating parties are completely innocent. As John Oliver put it in his interview with former NSA General Keith Alexander: "No, the target is not the American people, but it seems that too often you miss the target and hit the person next to them going, 'Whoa, him!'" The NSA has confirmed that it is searching Section 702 data to access American’s communications without a warrant, in what is being called the "back door search loophole." In response to questions from Senator Ron Wyden, former NSA director General Keith Alexander admitted that the NSA specifically searches Section 702 data using "U.S. person identifiers," for example email addresses associated with someone in the U.S. The NSA has used Section 702 to justify programs in which the NSA can siphon off large portions of Internet traffic directly from the Internet backbone. These programs exploit the structure of the Internet, in which a significant amount of traffic from around the world flows through servers in the United States. In fact, through Section 702, the NSA has access to information stored by major Internet companies like Facebook and Google. Section 702 is likely used for computer security operations. Director of National Intelligence James Clapper noted Section 702's use to obtain communications "regarding potential cyber threats" and to prevent "hostile cyber activities." Richard Ledgett, Deputy Director of NSA, noted the use of intelligence authorities to mitigate cyber attacks. The FISA Court has little opportunity to review Section 702 collection. The court approves procedures for 702 collection for up to a year. This is not approval of specific targets, however; "court review [is] limited to 'procedures' for targeting and minimization rather than the actual seizure and searches." This lack of judicial oversight is far beyond the parameters of criminal justice. Not only does the FISA Court provide little oversight, Congress is largely in the dark about Section 702 collection as well. NSA spying defenders say that Congress has been briefed on these programs. But other members of Congress have repeatedly noted that it is incredibly difficult to get answers from the intelligence community, and that attending classified hearings means being unable to share any information obtained at such hearings. What’s more, as Senator Barbara Mikulski stated: "'Fully briefed' doesn’t mean that we know what’s going on." Without a full picture of Section 702 surveillance, Congress simply cannot provide oversight. Section 702 is not just about keeping us safe from terrorism. It’s a distressingly powerful surveillance tool. While the justification we’ve heard repeatedly is that NSA surveillance is keeping us safer, data collected under Section 702 can be shared in a variety of circumstances, such as ordinary criminal investigations. For example, the NSA has shared intelligence with the Drug Enforcement Agency that has led to prosecutions for drug crimes, all while concealing the source of the data. The President has largely ignored Section 702. While the phone records surveillance program has received significant attention from President Obama, in his speeches and his most recent proposal, Section 702 remains nearly untouched. The way the NSA uses Section 702 is illegal and unconstitutional—and it violates international human rights law. Unlike searches done under a search warrant authorized by a judge, Section 702 has been used by the NSA to get broad FISA court authorization for general search and seizure of huge swathes of communications. The NSA says this is OK because Section 702 targets foreign citizens. The problem is, once constitutionally protected communications of Americans are swept up, the NSA says these communications are “fair game” for its use. Innocent non-Americans don't even get the limited and much abused protections the NSA promises for Americans. Under international human rights law to which the United States is a signatory, the United States must respect the rights of all persons. With so many people outside the United States keeping their data with American companies, and so much information being swept up through mass surveillance, that makes Section 702 the loophole for the NSA to violate the privacy rights of billions of Internet users worldwide. The omission of Section 702 reform from the discourse around NSA surveillance is incredibly concerning, because this provision has been used to justify some of the most invasive NSA surveillance. That’s why EFF continues to push for real reform of NSA surveillance that includes an end to Section 702 collection. You can help by educating yourself and engaging your elected representatives. Print out our handy one-page explanation of Section 702. Contact your members of Congress today and tell them you want to see an end to all dragnet surveillance, not just bulk collection of phone records.

Domestic Bulk Data Collection still occurs in the US – 702 reforms are/will fail and repeal is key

Laperruque 15

(Updates to section 702 minimization rules still leave loopholes Author Image JAKE LAPERRUQUE – Political Correspondant and Research Staff Member at the Center for Democracy and Technology SHARE POST Updates to Section 702 Minimization Rules Still Leave Loopholes FEBRUARY 09, 2015 https://cdt.org/blog/updates-to-section-702-minimization-rules-still-leave-loopholes/ Security & Surveillance – BRW)

In 2013 the Department of Justice changed its policy and began providing defendants notice when information obtained from Section 702 is used, but questions remain as to whether the scope of this notification policy is sufficient. And even if notification is eventually provided, the government could still use communications obtained using Section 702 as the foundation for investigation of minor domestic crimes, so long as it gathers other evidence for the purpose of prosecution. If the Administration is sincere in its commitment to limiting the range of crimes that information on US persons obtained through Section 702 can be used for, it should change the Minimization Guidelines – and support statutory reform – that requires communications of or about US persons that does not contain evidence of the crimes listed above (or foreign intelligence information) be immediately purged upon discovery. New Restrictions on US Person Querying: The policies announced on February 3 also create new restrictions on the NSA’s ability to querying its database of Section 702 communications for the communications of US persons. This practice is commonly referred to as the “backdoor search loophole” because if the NSA wanted to conduct the surveillance of the US person directly, it would be a “search” that would require a full FISA court order based on a finding of probable cause that the US person is a terrorist, spy, or other agent of a foreign power. Previously, minimization procedures vaguely required that querying construction be “reasonably likely to return foreign intelligence information,” effectively allowing NSA to deliberately seek out in a vast database of content collected under Section 702 Americans’ communications without judicial authorization. Under the new rules, the NSA and CIA will be permitted to query the database with US person identifiers (a unique identifier associated such as a name, phone number, email address, etc.) only after developing “a written statement of facts showing that a query is reasonably likely to return foreign intelligence information,” as recommended by the Privacy and Civil Liberties Oversight Board in its report on Section 702. This is a step forward for preventing some potential abuse posed by the backdoor search loophole, but it is a far cry from requiring a judicial finding of probable cause that the person whose communications are sought is an agent of a foreign power, as Senator Wyden has proposed to close the backdoor search loophole. While the NSA will be prohibited from searching the Section 702 database for an American’s communication with the goal of gathering evidence for domestic criminal investigations that have no national security implications, or simply gathering personal information that could be used to hold a person in disrepute (troublingly, it is unclear whether the FBI will be similarly restricted), it could still query the data base — and obtain the contents of the US person’s communications — for broad foreign intelligence purposes, such as when the analyst thinks the query would disclose information necessary to the conduct of US foreign affairs or US national security. In addition, an NSA analyst, not a judge, would decide whether obtaining the US person’s communications was proper. The new restrictions reflect the privacy interest in Americans’ communications being queried, but falls short of providing the protection that privacy interest is due.

Plan Text

The United States Federal Government will establish the FISA Amendments Act Section 702 as the only authority of domestic surveillance of information as it relates to National Security.

Solvency

Making section 702 of the FISA Amendments Act the sole authority for domestic surveillance is critical to restore credibility with American technology companies.

Bishai, , 2015

(Chrissy Bishal, Treasury presidential management fellow “Restoring Trust between U.S. Companies and Their Government on Surveillance Issues”, 3-19, http://www.thirdway.org/report/restoring-trust-between-us-companies-and-their-government-on-surveillance-issues)

Allegations of intrusive U.S. government electronic surveillance activities have raised international outcry and created antagonism between U.S. technology companies and the government. Without a bold and enduring reform, American companies will continue to suffer a competitive disadvantage from perceptions of U.S. government intrusion into their data. We propose bringing electronic surveillance collection from U.S. companies into an existing statutory framework in order to reassure international customers and to respect the rights of U.S. companies operating abroad. The Problem In the wake of the Snowden revelations, people around the world have become uneasy about the security of their communications that flow through the servers of American companies.1 They now fear—not without reason—that the NSA has broad access to a wide range of their data that may not have any direct relevance to the core foreign policy or security concerns of the United States.2 Snowden has also alleged that the NSA accessed American companies’ data without their knowledge.3 American technology companies reacted with outrage to media reports that, unbeknownst to them, the U.S. government had intruded onto their networks overseas and spoofed their web pages or products.4 These stories suggested that the government created and snuck through back doors to take the data rather than come through well-established front doors.5 Beyond the broad implications for civil liberties and diplomacy, these fears led to two immediate consequences for the industry: First, many U.S. companies shifted to an adversarial relationship with their own government. They moved to secure and encrypt their data to protect the privacy rights of their customers.6 They are pushing for reform.7 They are building state-of-the-art data centers in Europe and staffing their high-paying jobs with Europeans, not Americans.8 They are challenging the government in court.9 Second, international customers of U.S. technology and communications companies began taking their business elsewhere. Brazil decided against a $4.5 billion Boeing deal and cancelled Microsoft contracts.10 Germany dropped Verizon in favor of Deutsche Telekom.11 Both of these examples suggest that if even friendly governments can go to the expense and trouble of dropping American companies, foreign individual and corporate customers could certainly decide to switch their data providers for greater privacy protection. Simply put, the reputational harm had a direct impact on American companies’ competitiveness—some estimate that it has cost U.S. tech firms $180 billion thus far.12 Defenders of the programs may argue that the Snowden allegations are overblown or that foreign companies are just using the revelations for their own protectionist purposes. But it doesn’t matter if the allegations are actually true because the global public believes them to be true, and they are therefore real in their consequences. In many ways, the Snowden revelations have created a sense of betrayal among American companies. Some had been providing information to the NSA through existing legislative means – either under Section 215 of the USA Patriot Act,13 or under Section 702 of the FISA Amendments Act (FAA).14 It was unsettling to read stories that, outside of this statutorily compelled cooperation, the government had been getting access to huge amounts of their data in other unauthorized ways. As one tech employee said, “the back door makes a mockery of the front door.” Fixing the Problem Means Changing the Existing Legal Framework Currently, the U.S. collects electronic communications under four main authorities. For collection occurring under both 215 and 702, the companies would have been served with an order compelling production of their data.